Family law: March 2016

Property – transfers of land by husband’s father – assessment of contributions

In Bagby [2015] FamCAFC 209 (6 November 2015) the Full Court (Bryant CJ, May & Thackray JJ) dismissed the husband’s appeal from a property order made by Magistrate Moroni of the Magistrates Court of WA. The asset pool mainly comprised ’Property A’ ($610,000) transferred by the husband’s father to the parties jointly and ’Property B’ ($1.95m) transferred by him to the husband as trustee of a trust for the children’s benefit. The magistrate adopted an asset by asset approach, assessing the parties’ contributions to Property A as equal (at [47]) and the wife’s interest in Property B at 30 per cent. A s 75(2) adjustment was not made despite the wife being a Centrelink pensioner.

On appeal the husband argued that the order was unjust, the outcome being more than the wife had applied for or ‘outside the range’.

Thackray J (with whom Bryant CJ agreed) disagreed, saying that the husband’s counsel ‘conceded that it was open to the magistrate to award the wife more than she sought’ (at [127]), concluding (at [164]-[166]):

‘It should also be noted that his Honour found that the majority of the s 75(2) factors favoured the wife but decided not to make any adjustment in her favour on account of that fact “mainly because of the reasonably substantial size of the asset pool under consideration and to the practical results of the Court’s determinations on the subject of contributions”… In effect, the magistrate was saying that whatever the wife might have lost on the contributions’ swings, she would have made up on the s 75(2) merry-go-round. Given the length of the marriage [25 years] and the parties’ ages, health and employment prospects, I consider that view was well open to his Honour.’